R v Kinghorn [2014] NZCA 168 (12 May 2014)

Last Updated: 22 May 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA875/2013 [2014] NZCA 168
BETWEEN	THE QUEEN Appellant
AND	MATTHEW DAVID JAMES KINGHORN Respondent

Hearing:	8 April 2014
Court:	O’Regan P, Hammond and Stevens JJ
Counsel:	M Laracy for Appellant J Hannam for Respondent
Judgment:	12 May 2014 at 3 pm

JUDGMENT OF THE COURT

1. We grant leave to appeal against sentence under section 383(2) Crimes Act 1961.
2. The appeal against sentence is dismissed.

___________________________________________________________________

REASONS OF THE COURT

(Given by Hammond J)

Introduction

[1] Mr Kinghorn pleaded guilty to the murder of Mrs Anne McCullough. On 3 December 2013 he was sentenced by Rodney Hansen J in the High Court at New Plymouth to life imprisonment with a minimum term of imprisonment of 13 years.^[1]
[2] The Solicitor-General seeks leave to appeal against that sentence on the ground that in the circumstances of this particular case, s 104(1)(d), or in the alternative s 104(1)(e), of the Sentencing Act 2002 was engaged, thereby necessitating as a matter of law a minimum term of imprisonment of 17 years, unless that would be manifestly unjust.
[3] Counsel for the appellant, Ms Laracy, accepts it would be manifestly unjust to impose a minimum period of imprisonment of 17 years in this case, given the relevant mitigating factors, particularly the early guilty plea. Given that this is a Solicitor-General appeal, she argues the minimum non-parole period should have been 15 years.
[4] Mr Hannam responsibly accepts that given a distinct issue of law is involved this is a proper case for leave. Leave to appeal is granted.

The undisputed facts

[5] The sentencing in the High Court was to be preceded by a disputed facts hearing. However counsel for the Crown and the defence felt able to provide the sentencing Judge with an extensive 19 page “Summary of the Evidence” to avoid such a hearing. For reasons we will come to shortly, this process has proved problematic.
[6] Mr Kinghorn spent the evening of 19 October 2012 drinking with friends and associates at various locations in New Plymouth. He drove a distinctive purple Holden Commodore car. He parted company with his associates around 8 am on Saturday 20 October 2012. He was subsequently seen driving in the direction of his house. Thereafter he was seen driving at various points in New Plymouth. Around noon, he was again seen in the vicinity of his home. He then went to an ATM machine and checked his account balance. At about 12.30 pm he went to Nauti Nik Naks, an adult shop in New Plymouth. There he purchased a tube of lubricant, a bottle of “Fetish” leather cleaner (which can be used as a muscle relaxant or inhaled as a stimulant) and a packet of “Dr Feelgood” party pills containing four tablets, which are used for their stimulant effect.
[7] Thereafter Mr Kinghorn was seen driving out of New Plymouth, though in the interim he may have returned home. He passed the deceased Mrs McCullough, who was on foot, on Frankley Road. She was proceeding down the grass verge on the side of the road, in the direction of oncoming traffic.
[8] At some point Mr Kinghorn turned his car around to travel back towards where Mrs McCullough was. As Mr Kinghorn approached Mrs McCullough he drove off the road and onto the grass verge at a speed between 27.4 and 38.6 kilometres per hour. He drove directly at Mrs McCullough without braking. He hit her with the front left side of the car. She was propelled across the bonnet of the car. Her head impacted with the windscreen, shattering it. She was flung off the bonnet onto the grass.
[9] Mr Kinghorn started braking around the point of impact. His car came to a stop between 10.8 and 17 metres from the point of impact. He then got out of his car, picked Mrs McCullough up, and laid her on the back seat of his car.
[10] Mrs McCullough’s death resulted from high energy impact injuries to her head and brain, spine, chest wall, and limbs. She was knocked unconscious on impact and never recovered consciousness. It was not possible to precisely fix the time of death. Mrs McCullough could have died within three to five minutes of the impact, and at most up to an hour later. Rodney Hansen J concluded it was probable that survival was at the shorter end of that spectrum.
[11] After the collision, Mr Kinghorn was seen driving slowly back up the road. He appeared agitated. Witnesses described him as “kind of jerky”, moving around in the car and looking in the back seat. He drove on for some distance, on occasion in an erratic manner. Finally he drove into a paddock and parked in a corner close to bush where he could not be seen from the road. It is estimated he was at that site for between six and fifteen minutes. Sometime after 1.30 pm he drove out of the paddock to the car park at a scenic attraction known as the Meeting of the Waters. There he abandoned his car. Mrs McCullough was still lying in the back seat. The police were called to it in mid-afternoon.
[12] Mr Kinghorn had gone to a nearby house and asked the occupant to call the police and his mother. He was described as being in an agitated and distressed state. He made a number of comments including an awareness of what he had done. For instance he said to the first police officer who arrived: “I’ve killed her, I’ve killed her”. He also made admissions to a doctor who examined him, including that he had heard voices in his head saying: “They said [expletive] hit her so I [expletive] hit her.”
[13] Mrs McCullough’s body was still in the rear of the Holden car when the police located it. Her clothing appeared to be entirely in place. Her cellphone was located in the back pocket of her running shorts. An autopsy found no evidence of sexual assault.

The disputed facts

[14] The Crown argued at the sentencing that s 104(1)(d) of the Sentencing Act was engaged because the murder of Mrs McCullough was committed in the course of another serious offence, namely a sexual assault of some kind.
[15] There have been previous cases in which a victim has been deliberately struck down by a vehicle in the course of a sexual assault. For instance, in R v Alder:^[2]

[3] The deceased, [...], was jogging along a country road near the Hawkes Bay Golf Club on a Sunday morning. She had been with her partner but he had run on and she was returning alone to where they were staying. Mr Alder deliberately ran her down with his car in order to assault her sexually. She suffered a serious dislocation to her hip and other injuries as a result of being struck by the car and thrown against the windscreen and then to the ground. Mr Alder forced her, in her injured state, into the back seat of his car. She was then, and throughout the events which followed, in very considerable pain but conscious. Mr Alder sought no help for her; to the contrary he drove her down the long drive of a nearby property where there was no-one at home. Over the next two hours or so, he raped and sodomised her and also forced his penis into her mouth. He then killed her by means of several heavy blows to the head with a seven kilogram drainage pipe. The injuries he thus inflicted would have killed [the victim] immediately. But nevertheless Mr Alder went to his car, got a knife, and proceeded to inflict at least 35 stab wounds to various parts of her body.

[16] In that case there was clear and direct evidence establishing killing in the course of a sexual crime. The defendant received a minimum nonparole period of 17 years, though the present provision was not yet in force.
[17] In this instance there was no such direct linkage. Rather, the Crown sought at the sentencing hearing to have the trial Judge draw an inference of an integral connection between the deliberate running down in the vehicle and prospective sexual offending.
[18] This method of proceeding in this case was distinctly problematic. Undoubtedly the trier of facts in a criminal trial is entitled to draw inferences from facts that have been proved to that trier in evidence. In this case the Crown argued there was an inference that Mrs McCullough met her death “in the course of” intended sexual offending. Rodney Hansen J declined to take that view.

Process

[19] Before we review the Judge’s approach, we comment on the process relating to drawing inferences, and the law relating to a killing in the course of another crime.
[20] The methodology involved in drawing an inference has never been better put than by Lord Wright in Caswell v Powell Duffryn Associated Collieries Ltd: ^[3]

Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.

[21] The drawing of an inference is itself an exercise in fact finding. It is frequently strongly contested. To deal with such a critical contested fact at a sentencing hearing, rather than a disputed facts hearing, is inappropriate. It raises a danger that the usual criminal law safeguards will not be met. And routinely a judge may have to form his or her own impression of a witness or witnesses. An inference turns on all the available evidence.
[22] We would not wish to inhibit the use of “partial” agreed statements of fact being advanced to sentencing judges. But as a matter of process truly contested facts are for a hearing. Whether the inference contended for by the Crown was to be drawn was central to this case.

A murder committed “in the course of another serious offence” (s 104(1)(d))

[23] Parliament has recognised that for sentencing purposes there are some murders that are “worse” than others. Section 104(1) of the Sentencing Act provides:

104. Imposition of minimum period of imprisonment of 17 years or more

(1) The court must make an order under section 103 imposing a minimum period of imprisonment of at least 17 years in the following circumstances, unless it is satisfied that it would be manifestly unjust to do so:

(a) if the murder was committed in an attempt to avoid the detection, prosecution, or conviction of any person for any offence or in any other way to attempt to subvert the course of justice; or

(b) if the murder involved calculated or lengthy planning, including making an arrangement under which money or anything of value passes (or is intended to pass) from one person to another; or

(c) if the murder involved the unlawful entry into, or unlawful presence in, a dwelling place; or

(d) if the murder was committed in the course of another serious offence; or

(e) if the murder was committed with a high level of brutality, cruelty, depravity, or callousness; or

(ea) if the murder was committed as part of a terrorist act (as defined in section 5(1) of the Terrorism Suppression Act 2002); or

(f) if the deceased was a constable or a prison officer acting in the course of his or her duty; or

(g) if the deceased was particularly vulnerable because of his or her age, health, or because of any other factor; or

(h) if the offender has been convicted of 2 or more counts of murder, whether or not arising from the same circumstances; or

(i) in any other exceptional circumstances.

[24] The Crown seeks to rely on s 104(1)(d). The Solicitor-General maintains that Mrs McCullough was quite deliberately run down with a view to committing some kind of sexual offence upon her.
[25] There can hardly be room for contesting the fact that a sexual offence is a serious offence for the purpose of this provision, and Mr Hannam did not attempt to do so. However, we note in passing the lack of specificity in the Crown argument.
[26] The argument turned rather on the words “in the course of” in s 104(1)(d). This provision has been considered by this Court:^[4]

[39] As to the commission of murder in the course of another serious offence, this appears to have a temporal element. That is, there must be a prior event which is itself a “serious offence”, and the murder must then be committed in the course of executing that prior event.

[27] We would add that recently the Supreme Court held the words “with or on” in relation to the interpretation of an indecency offence should be construed in accordance with ordinary English usage.^[5] The Court appreciated that:^[6]

... there is some imprecision in all of this and that, as a result, there may be room for a difference of opinion as to the side of a line which a particular case falls. That decision will be for the finder of fact.

[28] The foregoing view of the law is consistent with the view taken by Rodney Hansen J in his sentencing notes. The Judge held that s 104(1)(d) “requires the actual commission of an offence. It is not enough to show that it was your intention to commit an offence, if given the opportunity”.^[7] His Honour went on:^[8]

... in the absence of any steps taken to further such an intention, there is simply not the evidential foundation which would permit me to find that Mrs McCullough met her death in the course of sexual offending. I do not accept [Crown counsel’s] submission that there is evidence of an attempted crime which would qualify for the purpose of s 104(1)(d).

[29] Ms Laracy argued the Judge had misapprehended the law, and a broader view should be taken of the statutory provision. She argued that s 104(1)(d) could be engaged if the Mr Kinghorn intended to commit a sexual offence and deliberately ran over Mrs McCullough as part of his plan to achieve this. She said this was an available interpretation of the facts.
[30] In our view the Judge was not in error. The case turned on the factual material that was available for review by the Judge, to which we now turn.

Resolving the disputed evidence

[31] Adopting Lord Wright’s methodology on drawing inferences it is first necessary to identify the “primary facts” on which an inference can be grounded at all.
[32] The evidence the Crown relied on was that earlier in the evening Mr Kinghorn had, before encountering Mrs McCullough, suggested he had it in mind to engage in some form of sexual activity. He made comments to a friend, Mr Atkinson, that he was going to “find a chick” or “find a hook-up”, and made purchases from an adult shop.
[33] Then there was reliance on the relatively low speed at which Mrs McCullough had been hit. The Crown suggested it must be inferred that Mr Kinghorn’s intention was not to kill her but to disable her and then take advantage of her incapacitated state. The speed at the time of impact was contrasted with speeds at which Mr Kinghorn had been seen driving earlier in the evening.
[34] Most critically, in the Crown’s view, there is the evidence that Mr Kinghorn actually engaged in some form of sexual activity either before or after hitting Mrs McCullough. The Crown contention is that with the assistance of the lubricant and the leather cleaner he had inserted the gear stick knob of the Holden into his own anus. That knob was only discovered many hours later in his cell. Mr Kinghorn did not deny that he had completed this act but claimed it was not for sexual gratification but to conceal Ritalin pills kept inside the knob. The Crown suggested that this activity likely took place in the paddock near the bush.
[35] Other items likely to have been used for the purpose of sexual gratification at some point in time were found in the car, some near where Mrs McCullough’s body lay in the back seat. These included an unwrapped condom, pornographic magazines and some packaging for the Dr Feelgood pills. The Crown suggested that it was while parked in the paddock that Mr Kinghorn realised that in fact Mrs McCullough had died as a result of being struck by his car, and could not complete his contemplated exercise against her, whatever that may have been.
[36] Then there were several matters mentioned by Mr Kinghorn to other persons after this incident, such as the police and the police doctor. These included references by Mr Kinghorn that at least implied a propensity to offend sexually.
[37] The furthest the Judge was prepared to go on the suggested inference was to say:^[9]

I accept that it is open to inference that before, and probably after you hit Mrs McCullough, you were preoccupied with achieving some form of sexual gratification. In all probability, you later did so by the use of the gear knob and possibly by masturbation.

[38] In this instance Rodney Hansen J was not prepared to draw an inference of prospective sexual offending, let alone actual sexual offending, against Mrs McCullough. He therefore found that the murder was not committed in the course of another serious offence, namely a sexual offence against Mrs McCullough.
[39] On the usual appellate principle it must be shown that the Judge was wrong in declining to do so. We do not think that has been shown here. We agree with the approach taken by the Judge on both the legal test to be applied and the facts of the present case.

Alternative s 104(1)(d) argument

[40] Before us, the Crown also endeavoured to establish that the murder had been committed in the course of another serious offence, namely kidnapping.
[41] It was contended that putting Mrs McCullough into the purple Holden amounted to a “kidnapping”. That is undoubtedly a serious offence under our law. The argument does not appear to have been run in the High Court.
[42] The difficulty – which we think is fatal – to the Crown’s suggestion is that it cannot be established beyond reasonable doubt that Mr Kinghorn knew Mrs McCullough was alive when he put her into his motor vehicle. If he knew she was alive then in theory kidnapping is possible. If she was still alive then, as Mr Hannam rightly conceded, “there was room for a sinister sexual motive”. If not, he was simply placing what he thought was her dead body into his car.
[43] Quite what Mr Kinghorn knew – if his recollection is to be regarded as reliable at all – is not known. It is equally possible that he moved Mrs McCullough’s body out of panic, having concluded he had killed her, rather than as the residue of an inchoate, failed abduction or sexual assault plan.
[44] Even if Mr Kinghorn knew Mrs McCullough was alive when he placed her in the car, it is not clear this could amount to a murder in the course of the commission of a kidnapping; rather it would be a kidnapping in the course of a murder, which would not come within s 104(1)(d).

Alternative s 104(1)(e) argument

[45] Ms Laracy also argued that, even if s 104(1)(d) was not engaged, this was a murder committed with a high level of brutality or callousness, and so came within s 104(1)(e).
[46] As this Court observed in R v Slade there is no such thing as a murder that is not in some sense brutal, cruel, depraved or callous.^[10] But the provision necessitates that this requirement be met at a “high level”. In Slade that was established by the nature and degree of violence, which included kicks to the head, and by the return of some offenders to the scene of the crime some hours later when further violence was inflicted whilst the deceased was lying unconscious and in grave distress. This was found to be highly “callous” for the purpose of the provision.^[11]
[47] In this instance Mr Kinghorn ran the victim down and she died almost instantly. We do not consider that this meets the test in s 104(1)(e). In saying that, we do not underestimate the enormity of the crime and the devastating effects it has had on Mrs McCullough’s family, as evidenced by their moving victim impact statements.
[48] This appeal point too must be dismissed.

Result

[49] We give leave to appeal and dismiss the appeal.

Solicitors:
Crown Law Office, Wellington for Appellant

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^[1] R v Kinghorn [2013] NZHC 3216.

^[2] R v Alder [2002] BCL 759 (CA).

^[3] Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 (HL) at 169–170.

^[4] R v Slade [2005] 2 NZLR 526 (CA).

^[5] Y (SC40/2013) v R [2014] NZSC 34 at [13].

^[6] At [22].

^[7] R v Kinghorn, above n 1, at [33].

^[8] At [34].

^[9] At [33].

^[10] At [40].

^[11] At [40]–[41].